Episode Transcript
[00:00:00] Speaker A: Imagine a justice system built on rigorous evidence, not gut instincts or educated guesses about what works and what doesn't.
More people could access the civil justice they deserve.
The criminal justice system could be smaller, more effective and more humane.
The Access to Justice Lab here at Harvard Law School is producing that needed evidence. And this podcast is about the challenge of transforming law into an evidence based field.
I'm your host, Jim Greiner, and this is Proof Over Precedent.
Welcome to another edition of Proof Over Precedent, the Access to Justice Labs podcast series today. I'm excited. We have four of us here today, including me, to talk about a study that the Access to Justice Lab very much wants to pursue and we're in the very early stages of it, on how much of a difference, if at all, different levels of assistance make in the immigration context. We'll find out that there are about 400 different things that occur in the immigration field generally which might or might not involve lawyers, but we'll hear about that further. We have here today one familiar voice, Renee Dancer from the Access to Justice Lab, and two folks who have never joined us before but with whom I'm familiar because they both used to attend Harvard Law School and have now gone on to awesome careers. So we're just going to start with introductions. Katie, can you lead us off? Who are you?
[00:01:26] Speaker B: Yeah, sure.
[00:01:27] Speaker C: So my name is Katie Taylor. I am a legal director at Nabors Immigration Clinic based in Lexington, Kentucky. So I graduated from Harvard in 2017 and have worked for the past 10 years or so doing mostly family and humanitarian based immigration work, direct services to low income clients.
[00:01:48] Speaker A: And where are you based?
[00:01:50] Speaker C: In Lexington, Kentucky. So I've been here for the past 10 years or so and we cover the state of Kentucky.
[00:01:56] Speaker A: Terrific. And what's a fun fact about you?
[00:01:59] Speaker C: A fun fact is I am in the process of buying and selling a home and that is a wild process, but that's my current life hobby.
[00:02:08] Speaker A: Super. Felicia, who are you?
[00:02:11] Speaker B: My name is Felicia Caton Reigns and I graduated from Harvard last May and since then I've been working at the no More Stranger foundation as the staff attorney there.
And it's a similar organization to Katie's in that we are a nonprofit and primarily help with direct services.
So that means we're working face to face with clients and helping them at the trial level of the immigration court. And our organization also helps people with naturalization and other types of immigration relief.
[00:02:40] Speaker A: Cooper and what's a fun fact and sorry, where are you based?
[00:02:43] Speaker B: Oh sorry, I forgot to mention I'm in Salt Lake City, Utah. So I was raised here and then wanted to come back or at least for a couple years to help people in my state.
[00:02:51] Speaker A: And what's a fun fact about you?
[00:02:53] Speaker B: Yeah, I learned Chinese, but so far this year, working as an immigration attorney, I have not been able to use it at all because all of my clients are almost exclusively from Latin American countries that I think that's not applicable. If I was working to help people with naturalization, my clientele would look a little bit different. But I'm mainly working with people in immigration court, and most of them have come from Central and South America.
[00:03:18] Speaker A: Terrific. And Renee, can you remind our listeners who you are?
[00:03:23] Speaker D: Yes, I'm Renee Dancer, researcher at the Access to Justice Lab, frequent guest on the podcast.
[00:03:30] Speaker A: And what's a fun fact about you or a new one?
[00:03:34] Speaker D: Sure. So I have talked before about how I like to cook. I also like to eat. And so I eat mostly everything.
But the one thing I do not like are cherries.
Stems from a childhood medicine distribution situation that included cherries.
And I recently tried Vegemite for the first time and the last time because to me it tasted like what a farm and tractor store smells like.
[00:04:09] Speaker A: Super.
That's an image I don't want to think about. Thanks very much for that, Renee. So. And for everybody, in case for everybody's benefit. I'm Jim Greiner. I'm the faculty director of the Access to Justice Lab. And since I'll just pick up on the food theme for a fun fact, I can't stand the taste of cilantro.
And there's nothing personal about cilantro in the sense that I it's, it's a perfectly good spice. But when I was spent a year in the Dominican Republic, the everything had cilantro in it and I was sick most of the time I was there.
And in fact, I came back from that excursion 66. Zero pounds lighter than I am right now at the same height. I don't think I'm that stout of a person right now anyway. But it but as a result, I have classical conditioning for the taste of cilantro so that I can't stand it. So we will go someplace, Renee, next time we're hanging out together that does not involve either cilantro or cherries.
[00:05:05] Speaker D: It's fairly easy to avoid, but sometimes it deserts it wears its head.
[00:05:11] Speaker A: So anyway, we're going to talk today about a project that started really with Felicia and Katie, with the two of y' all at different sort of time points and about trying to figure out where to deploy scarce attorney resources most effectively in immigration proceedings or at least to begin to accumulate evidence on that question.
And maybe we could start with you, Katie, to give us just a kind of a broad overview. The field is so enormous and again, as I mentioned, there are hundreds of places in the process where a lawyer might intervene.
What are the sort of top two or three places where a lawyer might do some good potentially and that it might be worth investigating and then why we're the one that we can use. Tell us about the one that we have tentatively settled on and why we might have picked that one.
[00:06:03] Speaker C: Yeah, sure. So immigration is interesting because part of immigration deals with an administrative court system and then part of immigration deals with the government office that's more similar to filing Medicaid applications or things like that. And so immigration attorneys help with all of them. But there's parts that are more form filing. There's parts that are straight up trial like a normal attorney is thought of. And triage is super needed though, because in this context, I think nationwide the stats are 14% of immigrants that are detained have access to an attorney. And then I think it's somewhere in the 35% range that are not detained have access to an attorney for the court process. So those are just really low statistics. And as much as the government loves to say it's just a civil proceeding so you don't have a right to an attorney, it's really big stakes. You're going to be in jail. They just don't call it jail. If you're detained, you could be deported. And a lot of the clients that we work with are fleeing their home country for persecution. And there's a lot of statistics about the number of them. If they're returned and deported after having sought asylum, there's really high rate that actual murder happening. When they go back proving that their asylum claim was worthy, they just maybe didn't have the correct evidence to prove it ahead of time. And there's a lot of moving part to a lot of different pieces of like where attorneys are more needed than others. Ideally everyone would have attorney, but that's we're just nowhere near that goal. That idea is so far and especially in Kentucky, like where I am based, we had three nonprofits last year in our city and now we're down to one. And that's me. With me being the only lawyer, we went from 12 attorneys to one. And that is very much the reality right now in the immigration space. Obviously we're probably worse off in Kentucky than other states, but we our city specifically was fourth highest for refugee resettlement in the country. And so it doesn't, the stats don't weigh out of like where attorneys are located and I think so our study that we're working on now is focusing on representation for actual trials of asylum seekers and immigration court and how much an attorney impacts that versus more self help materials for clients. And those are some of the biggest time intensive parts of immigration. And so I think that's why it really matters to study that we that is the one client type that we cap at our office of how many cases will take is individuals that are having asylum trials in immigration court. Pretty much everything else it's like normal capacity checking but those you have to be really cautious of because of how time intensive and evidence fact finding intensive, witness prep intensive, all of that that is. And I think it's really important to figure out how much does an attorney matter or not in that context? Because if we do find out that an attorney matters a lot, then that's helpful to know. Or if we find out that an attorney doesn't really make that much of a difference, an attorney could take that time to take so many other of the other case types. And I think that's why this study really matters.
[00:09:15] Speaker A: Alicia, I'm going to ask you generally the same question. I just asked Katie again to try to understand the setting and the stage a little bit more. And maybe also could I ask you to focus at some point in your answer on explaining the posture and the specifics of a trial in the immigration setting. So everything is basic as who's the initiating party and where is the client. Could the client be in jail or could the client be out of jail? Who is it before? What's the burden of persuasion?
[00:09:44] Speaker B: Yeah, I can definitely hop in and answer some of those questions. So I guess just first of all I also wanted to add that there's this special snazzy role called an accredited representative. And so these are people that are non attorneys but they can be trained to do legal work within the immigration system.
But what we've seen is that it's a lot easier to become an accredited representative that does work on some of the forms.
The types of cases that are processed through a DHS sub agency called USCIS that DHS is. DHS is the Department of Homeland Security.
[00:10:18] Speaker A: Good, go on. So which we have, it's not the health part. H doesn't stand for health, it's just for homeland. Yep, go on. No, and then you see what the
[00:10:25] Speaker B: next one Was the sub agency is called uscis, which stands for United States Citizenship and Immigration Services.
And so those are technically called affirmative asylum cases or, sorry, affirmative immigration cases. Asylum being one type of affirmative case because they're processed through that sub agency. And a lot of those people, maybe they came in on a status and they're mainly just trying to switch to another status. So those type of cases are a little bit more straightforward and the accredited representatives can help with them. I think there's some way that accredited representatives can also help with court proceedings, which are also sometimes called defensive immigration proceedings. But it is a lot harder for accredited representatives to start doing that work. Numerically, the type of people, the number of people qualified to do those two different. Two different types of cases varies. In addition to what Katie was saying, the number of cases that attorneys that nonprofits can take on, it also makes it so it's harder for the nonprofits to take the defensive cases.
Circling back to the question on the posture and specifics of a trial. And I guess since I was mentioning the agencies earlier, I'll swing back and mention that this, the agency over the court system is the Department of Justice.
The opposing counsel for immigration court proceeding is an attorney for. From dhs. So there's a lot of overlap in who's who and where they're from. In.
[00:11:58] Speaker A: Let me stop you one second. You said there's a court proceeding, but what you're telling me is that the court proceeding, the judge, the adjudicator, is not an Article 3 judge and not an Article 3 federal judge of the type who gets nominated by the president, confirmed by the Senate. It's also not a state court judge of the type that, say, the governor would appoint or, you know, and the legislature might confirm or that might get elected. Because most state court judges are actually elected in the United States. It's a different kind of judge. I understand. Also, it's not technically an administrative law judge either, because they're administrative law judges who have various protections, job security protections pursuant to statute where Congress creates them and says, for example, they're administrative law judges that are going to decide whether someone is disabled and therefore gets. Gets benefits, and they have certain job protections in the statute that created them. As I understand it, the judges presiding over these, these quote, unquote trials is none of those things. Is that correct, Felicia?
[00:12:59] Speaker B: Yeah, to my understanding, unfortunately, that is the reality that we're dealing with.
[00:13:04] Speaker A: Who are they? Who is the judge?
[00:13:07] Speaker B: I maybe I'll direct this question to Katie, since she said we're working with
[00:13:11] Speaker C: Yeah, I think it depends on the past year, the Trump administration has fired a lot of the immigration judges that had made decisions that were positive for immigrants. Now, none of them made 100% decisions. It was more like even if you made 20 or 30% positive decisions, a lot of those judges got fired and have now been replaced by JAG officers. So military attorney.
[00:13:37] Speaker A: JAG stands for Judge Advocate General, which is the lawyer part of the, of the military. Each, each military services has its own JAG corps. Right. But wait a minute.
[00:13:46] Speaker B: Let me.
[00:13:47] Speaker A: Again, this is where, when this is structurally where I'm trying to head.
The judge got fired. That's a new sort of thing. Right. In the sense. Not new, but it may be new to many listeners. The idea that a judge can get fired and can get fired just because of the rulings that they're making, that's copacetic. That's at least statutorily. There's at least an argument that's permissible in this setting. Is that correct?
[00:14:10] Speaker C: Yes, because the immigration court is technically an extension of the executive branch. So if the Executive Office of Immigration Review Eoir is where the immigration court. So basically they're serving at will of the president, and so they can be fired for no reason or there is no set term limit. There's no congressional. Yeah. Statute to check. And there's really very few checks and balances. Right now they're getting leaked, these emails that they're getting told from the top judge or the head of the Executive Office of Immigration Review is saying, you have to rule on this type of case in this type of way.
And so we're seeing a lot of. Last week we were getting these cases approved, and this week we're getting them denied. And they're citing policy, but the policy isn't even public. But that's a very different thing than you experience in an administrative law court.
You wouldn't have a judge citing policy that doesn't even exist because it's that judge's decision. And so in immigration court, there's a lot of pressure on the judges that if you don't do whatever that administration wants, then you can lose your job.
[00:15:17] Speaker A: And structurally, you said at the immigration board, the eoir is, is, you said part of the executive branch, and then you said it's part of the Department of Justice. It's actually, they're actually under the attorney general. Is that correct?
[00:15:32] Speaker C: Yes.
I think, like, honestly, it gets really confusing in court.
[00:15:39] Speaker A: Fair enough.
[00:15:39] Speaker C: Sure. They know sometimes, like, definitely the government attorneys are Department of Homeland Security.
That's clear. The judge is executive office at Immigration Review, but influenced by memos from the Department of Justice.
So I think technically it's executive, but influenced by other agencies. I don't know.
[00:16:02] Speaker A: Technically Department of Justice, but may be influenced by other agents. All under the executive branch. All is subject to orders from the White House, in other words. Okay, so again, so there's the judge. Right. And then you said that there's an attorney, an opposing counsel in some senses, representing the government.
And those folks come from the government. And typically, you said those are typically Department of Homeland Security attorneys. Right. The judges used to be sort of career judges that did this for a living.
More recently, many of them have been fired because allegedly they were ruling too favorably towards immigrants in the sense that 20% grant rate or something was too. Whatever it was too high.
And now they're either temporarily or permanently being replaced by former JAG attorneys who are now holding these roles. Okay, so there's the judge, there's the opposing counsel. You've got your client who initiates the proceeding. How does it begin in the setting? Is it because the client comes in and initiates a legal proceeding with an application for asylum, or is it because the government arrests the client and sticks them in a detention facility and then starts deportation proceedings? What's the posture?
[00:17:11] Speaker B: So there's a couple different ways that a case can get started. I think the one that we see most frequently is someone crosses the border, the southern border, typically, and they most likely came.
They came through without being what's called inspected. So maybe they made it across the border and then they were picked up by CBP officials. Sometimes they're also. Sorry, cbp, sorry, Customs and Border Patrol officials.
[00:17:36] Speaker A: Go ahead, Go on.
[00:17:37] Speaker B: There are a plethora of acronyms in the immigration space, as I'm sure you've already picked up on. So they have. So that's one way. So they crossed the border, and then either they did that and they weren't caught when they were crossing, but then were picked up after, or they were let in through a system called parole that was mainly a Biden era program. And maybe some people heard of the CDP1 app. So those people who came in with that app and people who came across undetected but were later caught, they're given what's called a notice to appear, and that just kickstarts their case in immigration court proceedings. Another way that they might get that notice to appear is if they came into the country on a legal status, like a tourist visa or some other type of visa, and Then they file an affirmative asylum application with uscis. So it's the United States Citizenship and Immigration Services. But if USCIS denies that affirmative application, then it'll get sent over to the court and their court case will get started. They'll get an nta, a notice to appear. And then the last way is if someone was in the country, sometimes it's even people who have some form of status that they get arrested or have some sort of criminal history. Then they'll probably also get a notice to appear. And K, you can jump in and correct me if I mentioned anything wrong.
[00:18:56] Speaker C: That's great. I think both are definitely the most common scenarios. Your notice tip here is your official charging document.
That's what initiates the proceedings. But then most of the people, like you were asking about where they are, most of the people are not held in detention. Specifically, you would be given the notice to appear. It gives you a date to show up in court and you would fight your immigration case without being held in detention. A lot of that has changed in the past year. There is like a statutory interpretation that most people were released without. And now the government has changed their mind about how they're interpreting this law and now is saying that all these people who previously were eligible to either just be released or to ask for bond, which is really similar to the criminal bail concept, where you just ask to be released to pay an amount to be released while you're pending your actual final answer from the court, which can take years. I have people in court that have been waiting for 10 years for the judge to make a decision on their case.
[00:19:56] Speaker A: Just to clarify. Oh, sorry. Let me just say that's not the proceeding that we're thinking about doing with the study, the one where they. Where does the statute require that they be mandatorily detained? Instead, it's the quote, unquote, merits of their status. Either they're going to be allowed to stay in the country because they're going to be granted some sort of status, or they're not going to be allowed to stay in the country because they're granted more status. Is that all correct? Do I have that all correct?
[00:20:20] Speaker B: Yes.
[00:20:20] Speaker A: Okay. So, Felicia, please go ahead.
[00:20:22] Speaker B: Okay.
[00:20:22] Speaker C: Yeah.
[00:20:23] Speaker B: And as far as what happens after they get their notice to appear, they'll get assigned to a court date and a court location. Sometimes there's. The court locations are assigned randomly when the person crosses the border. So someone that ends up coming to Salt Lake City, their court hearing may be scheduled for Orlando, Florida. And sometimes you can. You're Hypothetically supposed to be able to change that pretty easily to change the venue to where the immigrant lives. But what I've been stressing about this week is some courts do not make a decision on those motions to change venue.
And so my client, for instance, I am tech, I haven't entered a full appearance on his case. So he's in the moment, still a pro se immigrant in his court proceedings. His hearing is supposed to be in Orlando, Florida and if he doesn't go to he'll get a deportation order. Removal orders are the current term used to describe that. And so, and he can't go through an airport because there's a high risk that he, he'll get detained. So right now he's on day two of his three day bus journey to Orlando, Florida to go to his hearing. So he doesn't get a remove order and he doesn't have any family or connections. Orlando, that's just where the government just decided to assign his core location. So he's going to stay there for one night and then come three days back to UT which is his home. And all of it could have been avoided if the judge just decided on my motion to change venue, which the judge did not decide on. So it's a huge headache. And these first hearings are not a lot happens at them. They're just check in hearings called master calendar hearings where the judge will just ask someone if they need more time to find an attorney and then schedule their next hearing. This is if they're a pro se client. If they do have an attorney, sometimes it can actually speed up their proceedings a little bit. And so there'll be a series of two or three master calendar hearings typically and then the last hearing will be their merits hearing where their case will get decided. But before we get to the merits hearing, there's also a stage called the pleadings.
And that will happen at the last master calendar hearing typically. And basically the judge will just go through the notice to appear document and the government technically has the burden. So this is the DHS attorney representing the government. They have the burden to prove that the immigrant is removable and typically they're not often held to that burden. There's just been a history of immigration attorneys and I think the judges also just assuming, I guess that there are removal, they'll just go through all the the different charges and make that finding. But immigration attorneys are starting to try to do more to hold DHS to their burden to prove that.
But it all happens in 10 minutes or less and it sometimes it Happens in a written document instead of at their master calendar hearing. And so at that final master calendar hearing, the immigration judge will schedule the immigrant for their final hearing, as I was talking about, sometimes called the merits hearing.
[00:23:05] Speaker A: That's the sort of trial that we've been referring to. Right. That's the place where we're thinking about, or at least, or at some point in this process we're thinking about, maybe we should randomize whether there's an attorney or whether there's self help materials. Is that right?
[00:23:18] Speaker B: Yes, yes. And in order to earn that hearing, someone needs to file an application for relief. And so typically we work with clients that are filing for asylum, so they'll get that application in.
[00:23:28] Speaker D: It's.
[00:23:29] Speaker B: They can do a pro se, but usually there's a lot of errors if they do so. And there's more recently been a higher standard for filling out those applications. So it's beneficial if they have an attorney helping them with that stage. And then once they get to their final merits hearing, the.
If they have an attorney, the attorney will help them prepare a lot of evidence to support their application and to prepare the client for their direct and cross examination. That will happen at the hearing.
And the immigrant and their attorney have the burden to prove that the immigrant qualifies for asylum. And the hearings, I've seen them range in the time it takes between one hour and four hours. Maybe sometimes they're longer than that. But what will happen is the immigrant's attorney or the immigrant by themselves will have a direct examination where they get to provide oral testimony to support their case. And then the DHS government attorney will then cross examine them. And I think what I've seen happen most frequently is the DHS attorney often focuses on trying to show that the immigrant is not reliable or not credible. How we say it, basically just saying that, oh, you shouldn't be. The judge shouldn't be able to trust anything that they say because there is a couple inconsistencies here and there. And since the oral testimony and the client's written testimony are such an important part of the evidentiary support of the case, if the judge finds that the immigrant is not credible, it can ruin their asylum case, basically. So it's a really stressful experience for the immigrant and for the attorneys to just make sure that their clients are responding consistently with what they provided in their application and their written testimony and trying to remember the details of things that happened to them a long time ago. And a lot of the people in these hearings have gone through a lot of Trauma, which can also affect their memory and the way they talk about their case. And so at the end of that hearing, the judge will decide whether or not they get asylum or there's two other types of relief they could potentially get, but it's similar to asylum and packaged within their application and hearing. So like a three in one decision.
And the alternative, if they don't end up getting any of those forms of relief, they'll get a deportation order that they can then appeal if they would like. But the next level of the court system is also under the executive branch. It's called the Board of Immigration Appeals. And most of the attorney, most of the judges on the Board of Immigration Appeals are Trump appointees. So it's really hard to get past that appeal level to the next level of appeals, which would be the circuit court system.
[00:25:59] Speaker A: The circuit court system in the federals. You mean the federal circuit court system. That's the folks that are the Article 3 judges that the Senate confirmed.
[00:26:07] Speaker B: Yes.
[00:26:08] Speaker A: Got it.
[00:26:09] Speaker C: Brief and update, too, on that middle one, the Board of Immigration Appeals, they recently passed a.
I don't even know what it technically was. It's sued over right now. But they said basically, we don't have time to look at appeals anymore. We're going to not decide appeal unless we really want to. We're just going to say the underlying order always stands unless we really want to look at one like affiance, the Supreme Court, where we only take it if we want to.
That's being studied over. So who knows? Right now they can't do that. But so there's also a thought that whole middle level could in reality go away.
[00:26:44] Speaker A: And would that. And for the cases that have already been subject to that policy is the posture now that acts as an affirmance of the judgment of the immigration judge. And so that triggers the eligibility of the case to be appealed to the circuit courts. Is that right? To the federal, to the Article 3 Judge Circuit Courts. Is that right?
[00:27:03] Speaker C: Yes.
[00:27:03] Speaker B: Okay.
[00:27:04] Speaker A: Because they're going to love that when they get a flood of cases that had no merits review from the court.
[00:27:08] Speaker C: Real mad about all these immigration habeas. So they're going to get happier about this.
[00:27:12] Speaker A: Exactly. Okay, got it. Because they're going to get a huge flood of these cases. Right. So, okay, so let's go back to this. We started out calling it a trial, then we. And then we use the word hearing. This is the hearing trial. This is the sort of merits thing that we're focused on in the preparation for that. Let's Go back to that. And I think, and again, I know this is going to vary a huge amount, client by client, and where the client came from, from what the country of origin is and how the client got here. So did the client travel through another country or did they travel directly from country of origin to the United States, et cetera. But just in, in as short as possible a sense, Katie, what would a, a trial look like in the sense of what does the attorney do? They gather some evidence, they prep the witnesses.
Right. They get some documents.
[00:28:02] Speaker C: Right.
[00:28:02] Speaker A: I mean, is this just sort of standard lawyer work for any kind of merits adjudication?
[00:28:08] Speaker B: Yeah.
[00:28:08] Speaker C: So like before the trial you usually have a 30 day or 15 day depending on the judge, like call update, which is when you have to submit any documents like you would in pretty much any court. And so we're usually submitting like 500 page packets that are including statements from any witnesses, hopefully an expert report. So that would be someone from a country condition expert that usually they're PhDs at a university that study that specific country. So usually they'll write like 10 plus page reports explaining how the client's story makes sense in the cultural context. Sorry, of the. In the cultural context of the client's country. You're a lot of times also submitting psychological reports if the client has PTSD to help, especially with that credibility when DHS tries to attack their credibility based on like a mixed up memory or something like that.
And then we also submit coworkers or if they've suffered. A lot of our clients have suffered torture in their home country and so have physical scars or physical just like different things that can physically prove that would also be submitted. And then we submit. This is weird, but we submit hundreds of pages of googled articles from Human Rights Watch or Amnesty International showing contradictions in that country. And then when you get to the actual trial part, most of what Felicia was saying earlier, most of the trial is your client testifying. So your client has to testify in most courts. Some judges I've heard will allow you to waive them. One time when I did one in Massachusetts, they let me waive one when I did one through the Harvard Project up there. But most judges won't let you waive the testimony and your client will testify. They have to explain every bad thing that's ever happened to them and all the reasons that they're afraid to go back to their home country.
That testimony, like places that can vary in length. We've had. I had a trial that lasted three days, one Time. And the three days are split up. So it was like one day. Six months later, you picked up testimony, and then six months later. So that usually is a few hours. And then you can also have family members or friends testifying. If they are. A lot of times they're not in the US and so that's happening over video call.
And then also just remembering that this whole thing is happening through interpreters usually. So it's like client, interpreter, judge. And so as the attorney, you're just directing your client. It is weird. And this is why I'm really curious. The impact of attorneys in this space is there's no better rules of evidence, so there's no. Hearsay is allowed. Pretty much anything's allowed. I've objected maybe twice in 10 years because you can object based on the federal rules of evidence, but it's entirely up to the judge to just let it in anyways. And you can't object over hearsay, and you're just objecting over. Please stop terrorizing my client. That's the only time that really objected hard is like when my client was like, in tears and they kept asking the same question. But so it's interesting because you are playing the typical attorney role of directing the government. I have never. They could put on their own witnesses. I'd never seen them put on witnesses. And so you're not crossing. Usually you're only directing, and then you're. There is a new case that came out for opening and closing. You're no longer entitled to a closing argument. Most of my judges don't want us to do opening or closing. And so it's interesting because it's a lot less of that stuff. It's really a direct exam of your client and then a direct of any other witnesses you might have.
[00:31:43] Speaker A: So just wanted to notice the civil procedure professor is something that sounds odd. Technically, in these proceedings, the government has the burden of persuasion.
And yet ordinarily.
[00:31:54] Speaker C: So it's weird. The government has the burden of proving your client is removable on notice. That pier that Felicia was talking about, once they've met that burden, then it switches where now at that point, they can be deported. So the only way they're out can be deported is if you prove proof status. You're having to prove that your client is entitled to this benefit. So by the time we're at a trial for asylum, it's your burden. Got it.
[00:32:19] Speaker A: Okay. Super. That makes a little bit more sense. Super.
[00:32:21] Speaker D: Okay.
[00:32:22] Speaker A: And so just to go back to something that you mentioned earlier, Felicia, that I think is critical. And we actually has been the subject of prior proof over precedent blog and podcasts.
This is a setting, it's a tech. It is an administrative setting.
And there is an established. By statute and by rule. By administrative rules, there's an established program of allowing non lawyers to participate in this setting and to provide services.
And it's possible, although as I agree with you, it might be harder to get for the certification to occur. It is possible that the non lawyers might be able to do exactly this work. They might actually be able to do a hearing. Is that all accurate? Felicia, would go to you, since you were the one that brought this up again. We have a blog post on this about the non lawyer certification.
[00:33:11] Speaker B: Yeah, I'm more familiar about the accredited representatives for the.
[00:33:14] Speaker A: Yeah, that's what I'm. I'm sorry, that's what I'm referring to. Yeah.
[00:33:16] Speaker D: Oh, yeah.
[00:33:17] Speaker A: So they're not, they. They don't have. The accredited reps are not attorneys. Right. They're not JDs and they haven't passed the bar exam. Right.
[00:33:23] Speaker B: Yeah. And so when they're working on the other type of immigration cases that are not in court, I. My organization has a couple of them. They go through some training and they have to have a host nonprofit typically that can provide that training for them and supervise their work. But yeah, they do great work and our organization has loved having them because it makes it a lot easier to find staff that you can pay without having to pay attorney salaries.
[00:33:49] Speaker C: Yeah. So you can do the ones that Felicia's talking about there that do the affirmative files. They're called partially accredited routes. So they do a smaller training program and then they can do what's called a full accreditation, which requires them to observe a certain amount of hours in immigration court. It's something like 60. I don't know, I'm making up hours. But once they do that, then they can do a full trial and they can do everything that you do in immigration court as the attorney. It is. The program is potentially paused right now to allow new accreditations for people. Technically it opened, but they just gutted all of their funding. So in reality, we're hearing that new applications aren't being processed. But for those that had already process applications, it is great because they can do the whole thing as if they are just the attorney.
[00:34:35] Speaker A: So this is an area. And Renee, let's.
Let's ask you the access to Justice Lab. We frequently compare different levels of service.
This is an area in which, unlike if we were practicing in a state court Technically, what's in a state court with a trial here, we could actually think about the entire gamut of potential forms of service. Does that sound right to you?
[00:35:01] Speaker D: Yes. Yes.
[00:35:02] Speaker A: Yeah. So.
[00:35:03] Speaker D: And I think that we started this evaluation thinking that wondering if an attorney at this trial level really made the biggest impact or if what the attorney should be focusing on is preparing for the appeal.
Because we were seeing a large number of cases that where removal was being ordered and so now, but are ripe for appeal.
And the appeal is the harder aspect for the immigrant, where the trial, it's all difficult. So we can start from that premise that it's all difficult, but the trial is really prepping the immigrant for the trial is about making sure they, as you heard Katie and Felicia say, is about making sure they remember what they put in their application and they can consistently articulate that again on the stand, which, of course, has a different feel and vibe. But that's how the attorney could prep or the accredited representative could prep the client.
But the appeal is a lot. Has a lot more legal nuance. And so that's really how we came to this study, is wondering where we could put these really scarce attorney resources to make the biggest impact.
[00:36:21] Speaker A: And you've anticipated the next question I was going to ask, which is, okay, so we've just spent close to a half an hour trying to set the stage and explaining how this system, which is so front and center in the national consciousness right now, has always been for decades, close to 40 years. I was alive during Reagan, right. When this was, when this was front and center. Right. And it's dating back to 1980, right. Where we're having these debates been broken ever since that time. And it's clear that only a revamp and a whole lot of congressional regulation, regislation, which currently cannot get through Congress, could could become. Begin to fix it. Okay, so now the question question is how in the world could anyone possibly think that an attorney wouldn't make a difference? Right. If the idea is that this thing is so astonishingly complicated and so unfamiliar even to people who are familiar with the legal system.
And I guess what you're bringing up, Renee, but I want to get some elaboration from Felicia and Katie on is the possibility that you're just going to lose too often.
And in some sense, what you're dealing with is a doctor who's triaging in a catastrophe scene or in a battlefield scenario where just too many of the soldiers who are present being presented to the doctor.
First of all, there are way, way too many and A higher fraction of them are going to die no matter what. And so you have to focus on the very small fraction of them where you can make the difference between death and life.
And where is that in this legal proceeding? Is that at the trial or is that at the appeal? So let me just pause there and say we'll start with you, Felicia, did. I'm going to go to you, Katie. Felicia, did I get, does that sound right? Is that why this is worth studying? And if so, can you elaborate or are there other aspects that I missed?
[00:38:09] Speaker B: Yeah, I, one other thing I wanted to point out is that a lot of the things that will help with the appeal could potentially also help with the underlying case. So it's not that the two are mutually exclusive, but yeah, I agree that it's sometimes hard to know where attorneys can make the most difference because in some jurisdictions the judges are denying as many as like 90, 95% of asylum cases, whereas in other jurisdictions the judges are granting almost that same number, the same percentage. And so it, it seems almost like maybe the judge makes the biggest difference. What really can an attorney do if maybe the judge has already made up their mind about who gets asylum on a given day and based on maybe where the person's from when really the, the judge should be viewing each case on a case by case basis, it's hard to believe that the judges don't have some sort of pre existing ideas or assumptions about different countries and what's going on there going into some of these hearings.
And I just want to make sure I'm staying on track. So the question was, yeah, why would,
[00:39:07] Speaker A: why is this worth studying? Why? Why again, again, within such an incredibly complicated area, why it was worth studying. So again, it's not clear that the attorney is going to. So far at least what we've established is it may not be clear that the attorney is going to change a loss into a win.
Right. It may be that for a whole lot of judges now that it's just going to be a loss either way. And it may be that what you should do is try to reverse the loss on appeal or admit or try to drive something else. Yeah, Katie, please, go ahead.
[00:39:37] Speaker C: Yeah, I think what Felicia was saying is good. We have literally so depends on where you are in the country. But in our court, we're out of the Memphis court, but we have Mobile specific judges for local Kentucky and our Judges have a 95% denial.
[00:39:50] Speaker A: Right.
[00:39:50] Speaker C: Atlanta court has somewhere close to the 97% denial.
[00:39:54] Speaker D: Right.
[00:39:54] Speaker C: I've heard. And so depending on where you are, you can be the best lawyer in the world. Your client can have the best case in the world. They're going to lose that trial just because that's how it is. And we have judges that will often give oral opinions after we're done with the trial. And it's very interesting because they'll read like a 10 page oral opinion where they're like semicolon and parentheses. And then so they've already obviously written this opinion before this trial has been started. And so there's definitely a lot of that. And so I think the question really is one, these accredited representatives can't do this 6th Circuit appeal or the federal court appeals. We're in 6th Circuit in Kentucky, you have to be a lawyer for that. And for our clients in Kentucky, you're going to lose at the immigration court, you're going to lose at the Board of Immigration Appeals. Your first chance really of winning an asylum tape is when you get to the sixth Circuit. And so I think there's this question of can we just build documentary records that are strong enough and then not have to spend all that time trial prepping? Because I like to think that the evidence that has been submitted on paper counts the same that immigration judges don't think that. But the 6th Circuit does seem to think that it is interesting of could we either use accredited rep for the trials or just let clients go pro se? And would that time be better spent doing these high level appeals, especially in a lot of these areas where the courts are really high denial rate are more rural areas or like Atlanta's not rural, but it still doesn't have the same resources that Chicago or LA has nonprofit immigration wise and partially because of the political environment, but partially just because of the south versus the Northeast or New York. So I think the question really is important of not that we obviously we'd like there to be an attorney there too, but we're just nowhere near that reality. So is it better if we know we're going to lose anyways to be able to just be like, all right, this 40 hours I just spent prepping my client, prepping their sister, prepping all of these trials and then sitting through these three days of the trial? If I then spent that energy on a six circuit appeal, would that give the client a better outcome when the judge is reading a decision they clearly wrote before my trial had been started?
[00:42:13] Speaker A: And a key aspect of this, sorry, I just would draw one piece. A key aspect of this is the idea that you may be able to get to prep well, for the 6th Circuit appeal with the documentary evidence that gets submitted and then you wouldn't have to do, as you said, the trial prep. In other words, it's not as though you're saying, oh, give up, just don't do anything for the trial. For the trial slash hearing, you're saying, do the do, do it with documentation and then do the appeal. And that may be the more efficient case, efficient way of handling it. So Katie, let me just ask, do they have that correct?
[00:42:46] Speaker C: Yeah, I think that's my hypothesis. I think it would be really hard to win the appeal if you didn't document.
[00:42:51] Speaker A: So it's not that there can be no work at the trial, but we may be able to deploy it more efficiently. Sorry, Felicia, go ahead. Yes, please.
[00:42:58] Speaker B: Yeah, I was just going to jump in and say that we're also interested in understanding the role of the attorney at this trial level and how that impacts the appeal. Because at the trial, if the immigrant loses their case, the judge will ask if the immigrant wants to appeal. And so if the immigrant doesn't appeal or doesn't reserve their appeal, then they're not going to be able to appeal later. But the immigrant might not know that if they're at the hearing without an attorney. So that's a crucial step in this case that we're not sure like how much of an impact attorneys have in influencing their clients to preserve that right to appeal. And then after that trial is over, there's, right now it's like a 30 day appeal period. And so it goes really fast. And so if an attorney isn't helping the immigrant with their appeal, they might not actually end up submitting it. There's also, it also costs thousand plus dollars to appeal. And so if the attorney's not helping someone fill out a fee waiver, maybe they wouldn't have done that on their own. So I think there's a lot of different components to this process that an attorney could make a really big difference. But it's possible that the pro se clients would be doing those things on their own. We just don't know.
[00:44:06] Speaker A: Or they might do them pursuant to instructions from an attorney if those instructions were extremely clear, or instructions from an accredited rep or instructions from a non somebody without either accredited rep or lawyer training. Right. I can easily see training a paralegal or a project assistant to say, hey, these are the things you need to do. And even having a sort of callback and reminder system that you could automate it the way we do automated text messages to people who have criminal hearings that they need to show up for criminal trials. Randomized study after randomized study has shown that automating text messages is an effective way to try to reduce procedural default in that sense. Right. In the procedural default in the criminal setting is not showing up here. It might be forgetting to file your papers or something like that, or forgetting that you have to at this stage. Super. And Renee, back to you. We want to study this.
How do we do it? What's the basic idea? And I think this, this is actually sometimes the most complicated thing in a study, but actually for this one, it compared to the setting we're operating in, it's not as complicated. What do we want to do?
[00:45:12] Speaker D: That's absolutely correct.
We have been chatting about this work just to give some context for listeners since mid November of 2025. It is May, early May of 2026 when we're talking here today on this episode.
And so that's about six months. And the changes that have occurred and the reformations that have occurred in the immigration justice system has been just a lot.
[00:45:39] Speaker B: So.
[00:45:39] Speaker D: But the study itself is, like you said, fairly simple and one we have done before in other settings. Right. So we want to understand the effect of attorney at these defensive asylum hearings. We are randomly assigning attorneys versus really clear self help materials which might get to the things we just discussed about making sure clients are prepped appropriately for the trial, might get to the idea of preservation of appeal, that sort of thing, and wanting to know if that can be done, that type of instruction can be done. And we also want to know whether or not these attorneys are making a difference at this defense of asylum hearing level. So the initial trial court level, not the appeal level. And so we're doing that through that random assignment. But then we're also, and we're looking at records about what happens in the case. So similar, like, analogous to this would be other court records we've looked at in other types of cases. Right. But this is just a different type of court where, with a different system where you look them up, but it's the same concept. And then also looking up detention records to wonder to understand if clients are detained during the pendency of the hearing. Now, to be eligible for this study, we're looking at non detained immigrants at the time of enrollment, but we want to understand if they become detained at some point while we're doing our follow up and all of those records are online.
So in fairness, you do need to know the immigrants a number. A, as in letter A. I assume that Means asylum, but honestly I didn't know that. Think about that in full. Right.
[00:47:17] Speaker A: Alien.
[00:47:18] Speaker D: I was going to guess alien number.
[00:47:19] Speaker B: Okay.
[00:47:21] Speaker D: I knew you were going to ask me and I was like, actually I don't think I know. And that is a number that is not publicly available. But only the immigrant themselves know know that. But it's on alcohol or paperwork. So you do need that to look up those records. But otherwise they're online, they're publicly available records. So it's one of the more, the simpler kind of designs that we've done in the past.
[00:47:43] Speaker A: Yeah. From a study design standpoint, we've, we've done much more complicated field operations using instrumental variable techniques or with in one case that we'll be talking about in the future. At last count, around 35 different administrative agencies that we're collecting and those are non legal administrative agencies and about 15 court system, jail record type type things, et cetera. So this one, relatively speaking from a scientific point of view is and again is simple. And again the treatment contrast, Renee, you mentioned is just full representation versus self help materials to get started.
Renee, back to you. Where are we? Where what's, where are we in the stage? Are we, we going to have results next week or are we at a different, are we at a different stage of the study?
[00:48:30] Speaker D: That is a common question. When are you going to have results? We are still in the planning stage. So we have the study design as you can tell, and we've discussed it here. We have our IRB approval almost in like. Yes, it's like just one little bit left on that, but it will get there. So we're in the process of looking for funding, funding to do the research. And so that's all of our studies. We are funded through some grant funding typically, and this is no different. And so we're looking for a funder that is interested in understanding better how to serve immigrants in the immigrant justice system.
[00:49:09] Speaker A: Terrific. Okay then in the interest of time, we're going to leave it there. But final thought from each one of you. So we'll start with you, Felicia, final thought. What last thought on all of this? What have we missed or how would you leave us?
[00:49:23] Speaker B: Yeah, I guess we talked a lot about the on the ground impacts of attorneys or potential on the ground impact or not impact. But from a data perspective, there's really not any randomized control trials on this question.
And so I think it has the potential to really shed a lot of light from a research perspective on the statistical roles that an attorney can play in these cases. All the data that we have so far is correlational, and there's been some quasi experimental studies that have been done, but not in RCT yet.
[00:49:52] Speaker A: Yeah, super. Katie, final thought from you.
[00:49:55] Speaker C: Yeah, no, I definitely echo what Felicia was just saying because I think I'm excited to see what comes out of this because we are so past the point of triaging in this area that people love to talk about the idea of universal representation and immigration. And yes, I love that, but we're not even 1% represent. We're just nowhere close. And so I'm excited. I'm having to make decisions literally hourly of which client am I taking and which case am I spending time on. So I would love for there to be some sort of data or research rather than me guessing off my gut. And so I think that's why this study will be really helpful.
[00:50:34] Speaker A: Fantastic. Renee, final thought from you.
[00:50:37] Speaker B: Sure.
[00:50:38] Speaker D: I think anecdotally we all hear about the immigration system and the immigration court system and hear of its complexity, and that seems to be true. But I have been entirely astonished by working so closely with Felicia and Katie and hearing about the complexity from the perspective of somebody who is working in this system every day. And I'm humbled. It is not my area of expertise, and so it is very humbling to learn more about it. And it's really disappointing how challenging it is and how long it takes for anyone to really understand their status in the country.
[00:51:16] Speaker A: Terrific. And also just to preview something, the theme of triage, which you all have mentioned a couple of different times, is something that we're going to be studying. And we have forthcoming podcasts about Proof Over President, including for. Including with some other folks who are advocating explicitly for more intentional triage all across legal services, criminal and civil, and then certainly in this space, as well as. Thank you so much to everybody. Really appreciate it and we will leave it there for now with again, big thanks.
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[00:52:15] Speaker C: And I want to emphasize that the power of case data isn't just contained to evictions.
It can be used to unveil, like, larger inequities that exist within our legal system. For example, on the conversation of racial disparities that exist. A case study on Pennsylvania counties looked at 50,000 court cases, and they discovered that judges were more likely to assign cash bail to black defendants than to white defendants, even when the risk of skipping court was equal.
